5.  The applicant was born in 1979 and lives in La Porrosa (Chiclana de Segura, Jaén).
6.  The applicant, the daughter of a Guinean father and a Spanish mother, was living at the time of her daughter G.'s birth, on 3 October 2001, within a mutually supporting extended family. The family unit comprised her grandmother, her great-uncle (her grandmother's brother, a lawyer by profession), and the applicant's other two children. Also living temporarily in the family home (two adjoining houses) were a Guinean priest and the godfather of two of the applicant's children. The property is situated on an olive-producing farm belonging to and run by the applicant's grandmother. The applicant is also regularly hired by the Government of the Autonomous Region of Andalusia as an agricultural worker, an activity which she combines with other farm work, particularly grape-picking in France.
7.  In order to avoid having to take her two eldest sons to France with her, the applicant appointed her great-uncle to look after them until her return. The two children are officially under the guardianship of the Jaén provincial office and placed in the foster care of their mother's great‑uncle, within the extended family. The applicant has not objected to this situation, as the children live in practice with her and the remainder of the extended family on the farm.
8.  On 23 August 2005 the applicant and her partner, accompanied by their minor daughter G., visited the social services department of the municipality of Motril (Granada) looking for “work, food and housing”. The same day – at the request of A.L.N., a social worker with the child protection services of the Granada provincial office for equality and social welfare (hereafter “the provincial office”), who had called the police because of the applicant's agitated state – child G., then aged three years and ten months, was taken away from her mother and placed in the Nuestra Señora del Pilar children's home in Granada. Her mother was taken to hospital on account of her nervous state following the separation from her daughter.
9.  On 25 August 2005 the provincial office began the administrative procedure to have G. declared legally abandoned, and issued a provisional declaration to that effect. The decision cited, among other factors, the applicant's lack of funds (her state of extreme financial hardship), the child's situation and lack of hygiene, the fact that she was inappropriately dressed for the summer weather, her dry skin, marked with scars and scratches, and her anxiety about food. The provincial office assumed guardianship of the child, ordered her placement in the aforementioned children's home and informed the applicant that she could apply for legal aid if she wished to appeal against that decision to the first-instance judge.
10.  On 26 August 2005 the applicant requested the Motril social services department to return her daughter to her. She also visited the department the following day and again on 30 August. The child protection services informed her that contact with her daughter would not be recommended until such time as the applicant began psychiatric treatment. The applicant claimed that the social workers had offered her money (see paragraph 16 below).
11.  A report dated 29 August 2005 prepared by the Nuestra Señora del Pilar children's home stated that the child's “overall condition [was] acceptable”, noting simply that her skin was dry, with minor scars and cuts caused by scratching. According to a subsequent report dated 1 September 2006 prepared by the San Ramón y San Fernando children's home in Loja (Granada) (see below), the child was suffering from atopic seborrhoeic dermatitis.
12.  On 30 August 2005 the applicant was informed that the provincial office was assuming guardianship of G. and that she was being placed in the Nuestra Señora del Pilar children's home in Granada. The applicant was also informed of the possibility of appealing against that measure to the first-instance judge. She was told that no contact visits with her daughter would be recommended until such time as she began psychiatric treatment. The mental health team told her on 5 September 2005 that she was not in a position to look after her daughter, but that supervised visits could be arranged.
13.  According to the “observation and initial reception” report drawn up by the San Ramón y San Fernando children's home in Loja on 30 October 2005, G. had been moved to the home on 14 September 2005. The applicant was not informed and did not give her consent. Some witnesses claimed that the child had been moved there on 13 September 2005.
14.  On 23 September 2005 the applicant requested the provincial office to transfer her daughter to the Linares (Jaén) children's home, which was closer to where the applicant lived.
15.   The last of three supervised meetings between the applicant and her daughter following the latter's placement was held on 27 September 2005. The meetings took place away from the children's home and were supervised by carers and by the police. The applicant stated that the other two meetings had taken place on 6 and 20 September 2005. According to the applicant's account, her daughter told her at one of these meetings that she had been taken to a house with a swimming pool. The applicant has not seen her daughter since.
16.  In a report dated 4 October 2005, social worker A.L.N. noted the applicant's inappropriate attitude – described as disrespectful, “violent” and aggressive – and stated that the applicant had attempted to harm herself and had had to be taken to hospital when her daughter was taken from her. A.L.N. said that the applicant had been informed of the steps likely to be taken to ensure her daughter's welfare on account of the applicant's lack of means. A.L.N. expressed the view that the temporary fostering of G.'s two brothers by the applicant's great-uncle should be discontinued on the (unsubstantiated) grounds that the latter was not suited to the task. She noted in her report that the applicant travelled every day to the vicinity of the Nuestra Señora del Pilar children's home, where the child protection services had put in place a provisional arrangement consisting of three visits supervised by carers and by the police, away from the home, “in anticipation of possibly violent conduct” on the part of the applicant. The social worker stated in her report that the applicant had been given an unspecified sum of money in order to travel to Majorca and to Madrid. According to the social worker, the applicant had at first asked for the money but then refused it, throwing it on the ground. She had subsequently asked for money again, this time to travel to Granada, but had returned it three hours later out of a sense of pride. According to the report, during the three supervised visits the applicant had encouraged G. to continue crying and shouting in order to get what she wanted, had constantly accused the professionals of not providing her daughter with the appropriate assistance, had spoken to her daughter in a compulsive and incoherent manner, had not accepted the visiting hours and had screamed when the end of the visits approached, threatening also to take photographs in order to publicise the situation in a television programme. Describing the applicant's conduct during her visits to the Nuestra Señora del Pilar children's home as “violent”, and taking the view that it was disrupting the child's stability and development, A.L.N. proposed suspending the visits and moving G. to a different home, the address of which should not be disclosed to the applicant.
17.  On 5 October 2005 the provincial office took a decision confirming G.'s provisional legal status as an abandoned minor and placing her in the San Ramón y San Fernando children's home in Loja (see paragraph 13 above). It was also decided to seek a court order suspending visits, and, pending the order, to temporarily suspend all communication between the applicant and her daughter, in the latter's interests, and not to provide the applicant with any information on G.'s whereabouts. The decision informed the applicant of the possibility of applying for legal aid should she wish to appeal against the decision to the first-instance judge.
18.  On 4 October and 22 November 2005 the applicant again applied to the provincial office seeking to have her daughter moved to the Linares children's home and requesting contact rights.
19.  Between 22 November 2005 and 31 January 2006 the applicant approached the provincial office on at least seventeen occasions asking to see her daughter. She complained of the lack of information concerning her daughter, and in particular of the refusal of the lawyer representing the provincial office to explain the reasons behind the declaration that her daughter had been abandoned. The applicant was not allowed any contact with her daughter and has not received any information about her since.
20.  On 27 October 2005 the Government of the Autonomous Region of Andalusia applied to the Granada first-instance judge no. 3 to have the contact visits suspended (a provisional decision having already been taken).
21.  On 2 November 2005 the administrative proceedings were stayed at the request of the Granada Bar so that a legal-aid lawyer could be appointed to represent the applicant. A lawyer was appointed on 20 January 2006 and made representations on the applicant's behalf on 23 January 2006.
22.  In a decision of 1 February 2006 the provincial office officially declared the child to have been abandoned, in view of “the poor prospects for improvement [of the family's situation] and hence for reunification of mother and child”, and decided to initiate the procedure for placing G. in pre-adoption foster care. The decision stressed (without citing any supporting reports) that the applicant's great-uncle was not a suitable candidate for fostering G., and reiterated the findings made in the previous reports. It also referred, without elaborating further, to the “mother's mental health” and her “moderately manic state”, and considered it significant that the applicant, on the numerous occasions when she had visited, “[had] displayed no interest, either orally or in writing, in the child's well-being”. The prohibition on contact visits was kept in place. The applicant was informed of the possibility of applying for legal aid should she wish to appeal against the decision.
23.  On 2, 6 and 15 February 2006 the applicant again requested the provincial office to allow her to visit her daughter and expressed her opposition to G.'s placement in pre-adoption foster care, arguing that the reasons given for taking her daughter from her had no basis in reality. On the last of these dates she reported the situation to the Spanish Ombudsman's Office.
24.  On 16 February and 2 March 2006 the applicant again approached the provincial office requesting contact with and information about her daughter.
25.  On 10 January 2007 the provincial office's protective measures committee upheld the provisional declaration that G. had been abandoned.
26.  On 22 January 2007 the social worker A.L.N. sent an e-mail to the Red Cross asking them to trace the applicant and to check on the situation of her fourth child, a baby. She stated that the applicant's eldest two children had been placed in foster care with one of the applicant's great‑uncles and that G. had “been adopted” by a family who were also prepared to adopt the applicant's baby. She estimated the latter to be around nine months old, noting that the applicant “[had been] pregnant over a year ago”. She said that the applicant had “undiagnosed mental health problems” and was likely to “be in France, with the baby and her current partner, a French citizen”.
27.  On 31 January 2006 the Granada first-instance judge no. 3 decided to join the proceedings concerning the appeal against the child protection measures and the proceedings on the suspension of contact visits.
28.  On 28 November 2006 the applicant, represented by a lawyer, contested the legal declaration of abandonment adopted by the provincial office, claiming that she was living in France with her partner and receiving monthly payments of 836.87 euros.
29.  On 3 May 2007 a hearing was held before the Granada first‑instance judge no. 3 concerning the declaration of abandonment. The prosecutor responsible for minors requested the judge to uphold the declaration that G. had been abandoned.
30.  In a judgment of 18 May 2007 reiterating the arguments set out in the provincial office's decision of 25 August 2005 concerning G.'s abandonment, issued two years previously, the Granada first‑instance judge no. 3 rejected the appeal against the declaration of abandonment and held that the child could return to the family home if the family's situation improved. The judge upheld the guardianship order and the order placing the child in residential care. He stated as follows:
“... 2. In the light of the submissions, it is apparent that when the authorities intervened there were ample grounds for declaring child G. to have been abandoned. It is clear beyond dispute from the administrative file that, whether as a result of ignorance, other impediments, lack of social skills or any other reason, including possible mental illness (although it should be said that the mother did not cause or seek to bring about this situation), the child was in a state of wholesale physical and psychological neglect. Her appearance was very dirty, she wore clothes that were inappropriate for the summer weather and her skin was dry and marked with scars and scratches. She said that she lived among the reeds (en las cañas), speaking of them as if they were her house; she also displayed anxiety about food and was receptive to any sign of affection. This provided ample justification for automatically placing her under guardianship and declaring her to have been abandoned. The child's situation is not new since both her older brothers are in foster care with a great-uncle owing to the risks to which they were being exposed. The file does not contain any objective evidence to suggest that the appeal [against the declaration of abandonment] should be allowed, particularly bearing in mind that a possible error could be damaging to the child, who deserves all possible protection, and that this consideration must prevail over any other interests.”
The judge refused to put in place the schedule of contact visits requested by the applicant, on the grounds of “the child's lack of emotional attachment to her mother and [the fact that] the latter's violent conduct during the visits [was] disruptive to the child's stability and development.”
31.  Following an appeal by the applicant, the Granada Audiencia Provincial, in a judgment of 27 June 2008, upheld the impugned judgment. The court pointed out that the aim of the proceedings had been to uphold or overturn the decision by the administrative authorities declaring G. to have been abandoned. The child's placement in care could be reviewed in the course of the appropriate administrative or judicial proceedings, which the applicant could institute if her situation changed. The judgment upheld the prohibition on contact visits between the applicant and her daughter and the residential care order.
32.  On 1 February 2006 the provincial office submitted its report setting out the reasons for the proposal to place the child in pre-adoption foster care. The same day the proceedings were stayed pending the appointment of a lawyer for the applicant.
33.  On 2 April 2006 a couple was chosen as foster parents for the child. On 9 June 2006 the provincial office's protective measures committee began the administrative procedure to have G. placed with a foster family.
34.  On 14 February 2007 the provincial office ordered G.'s temporary placement in pre-adoption foster care, on the following grounds:
“ On 25 August 2005 it was decided to issue a provisional declaration that the child had been abandoned, and a residential care order, on the grounds set out above.
In view of the seriousness of the allegations against the child's mother, the fact that the father's whereabouts are unknown, the mother's provocative and aggressive attitude and the inconsistency of her statements on her visits to our departments, a report on her state of health was requested in order to assess the possibility of putting contact arrangements in place. On 5 September 2005 it was decided that the mother was not capable of looking after her daughter but that she could meet her under supervision.
Three visits took place away from the centre where the child is living, under the supervision of carers and police officers. The incidents occurring during those visits, the fact that the mother is frequently seen in the vicinity of the home, her behaviour, the assessment of the mother-daughter relationship and the overall developments in this case led to a decision being taken on 4 October 2005 to suspend contact visits on a temporary basis and to move the child to a different home.
The documents in the file show that the child's mother has two other children who have been abandoned and are under the guardianship of the Jaén provincial office, that no member of the extended family (up to the third degree of kinship) is able to take care of the child and that the great-uncle who was put in charge of the other two children, first on a temporary basis and then as a foster carer, is overburdened. The information in the file leads us to conclude that the prospects for improvement in the family's situation and reunification of the child with her mother are poor.
The mother regularly complains to our departments about all kinds of irregularities on the part of the officials who are involved or have been involved in this case (health care workers, members of the judiciary, police officers, municipal social services, the protection service, children's homes, etc.), while at the same time refusing to sign acknowledgements of receipt, to submit the documents requested and to prove or seek proof that the information in the file is inaccurate. Furthermore, she denies all of the above as well as the failings identified, the risks run by the child and her own instability. She does not attend her appointments at the mental health centre. It is significant that in the course of her repeated visits she has never attempted to find out, either face-to-face or in writing, how her daughter is getting on.
We are thus dealing with a child whose father cannot be traced, who cannot be taken care of by the person already looking after her two brothers, and whose mother – who appears to have another child under the guardianship of the French authorities – is once again pregnant. The prospects for reunification of the birth family in the foreseeable future are poor. All of the above considerations, in addition to the need for the child to live in an appropriate family environment and to avoid a prolonged stay in institutional care, justify continuing the procedure and making lasting foster care arrangements with a view to adoption ... .”
35.  As the applicant refused to consent to G.'s placement, the child protection services issued a proposal on 23 March 2007 for the foster care arrangements to be put in place by means of a court order, with the child being placed in temporary foster care in the meantime.
36.  On 2 October 2007 the applicant, represented by a lawyer, brought judicial proceedings to appeal against the decision of 23 March 2007 to place her daughter in pre-adoption foster care.
37.  After a long series of procedural setbacks, a hearing took place on 28 July 2009 before the Granada first-instance judge no. 16. The applicant objected to any form of pre-adoption foster care for her daughter and instead requested that G. be placed in permanent foster care with the applicant's great-uncle and that she should have contact rights. The applicant also challenged the declaration that G. had been abandoned, approved by the first-instance judge no. 3.
38.  The prosecutor responsible for minors supported the applicant's appeal against G.'s placement in pre-adoption foster care.
39.  In a judgment of 4 September 2009 the Granada first-instance judge no. 16 upheld the foster care arrangements proposed by the child protection services on 23 March 2007. He did not allow the applicant's great-uncle to appear as a witness, and rejected the alternative proposal to place the child in foster care with him, taking the view that the applicant's great-uncle was not a suitable candidate for fostering children. As to the declaration of abandonment in respect of G. issued by the Granada first-instance judge no. 3 and upheld on appeal, the judge did not examine it and pointed out that the decision of the first judge was final and that proceedings would have to be brought in the event of a change in circumstances. However, with regard to the alleged change in circumstances since the time of the declaration of abandonment, the judge noted that the applicant had stated “[that she] grew olives, worked on the land and worked for part of the year in France, was a good mother and could live with her children, was capable of it and had family very close by”. The judge took the view, referring to “technical reports” which he did not cite, that “this testimony, given by members of [the applicant's] family and neighbours, [did] not by itself demonstrate that [she was] once again competent to raise the child”. The judge noted the following:
“... the child, who is almost eight, has had no contact with her mother for several years, as contact visits were suspended following a court order. All this indicates that in the interests of the child the most suitable guardianship measure is the one already adopted, consisting of pre-adoption foster care, notwithstanding the fact that the prosecutor responsible for minors supported the applicant's claims and requested that [her] objections be taken into account.”
40.  The applicant, represented by her lawyer, appealed against the judgment of 4 September 2009.
41.  The prosecutor responsible for minors supported the applicant's appeal.
42.  On 18 December 2009 the applicant submitted a psychological expert report stating that she was capable of looking after her daughter.
43.  In a judgment of 18 June 2010 the Granada Audiencia Provincial upheld the first-instance judgment. It pointed out that the object of the appeal against the foster care decision had not been to challenge the declaration of abandonment, but to demonstrate that the reasons for it had ceased to exist and that a radical change had occurred in the behaviour, habits and lifestyle of the birth parents which justified returning full parental responsibility to them, and at the same time to provide irrefutable evidence that the child's return to the family would be clearly beneficial to her. The judgment referred to the assessment of the evidence by the first-instance judge no. 16 and noted, among other things, that the psychological expert report submitted by the applicant on 18 December 2009 contained only information provided by the applicant herself, such as her supposed ability to look after her children, without explaining why two of her other children had been placed in foster care with her great-uncle. The judgment further observed that the report, while stating that the applicant did not suffer from any mental illness or disability, had noted her impulsive and irascible nature. Likewise, notwithstanding her assertion that she spoke three languages, the applicant had not attempted to make use of those skills, living in a situation of social and professional isolation which forced her to emigrate or move around in order to find work. In any event, the Audiencia Provincial took the view that there was no “convincing evidence in the report that the risk of a recurrence of the lack of attention to her minor daughter which led to the declaration of abandonment [had] ceased to exist”. The court considered that the witnesses called by the applicant to testify to her capacity to have her children living with her “[had] not provide[d] any evidence of her social and professional stability and of an absence of risk for the child, still less [had] they demonstrated how the child would benefit from being returned to her original family”.
44.  The applicant appealed on points of law. The appeal was declared inadmissible by the Granada Audiencia Provincial on 27 July 2010.
45.  Relying on Article 15 (right to physical and moral integrity) (in relation to her daughter) and Article 24 (right to a fair hearing) of the Constitution, and on Articles 8 and 14 of the Convention, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 27 October 2011, served on 3 November 2011, the Constitutional Court declared the appeal inadmissible as lacking the special constitutional significance required by section 50(1)(b) of the Constitutional Court Act.
46.  In the meantime, in decisions dated 18 October and 1 December 2010, the Granada first-instance judge no. 16 confirmed the status of G.'s foster parents as her pre-adoption foster family.
47.  A follow-up report on the foster family dated 29 March 2011 noted that G. was fully integrated within the family, with whom she had been living since 16 February 2007, and within the extended family. The report noted that G. had attained the level of physical and motor development appropriate for her age and had made progress in terms of her maturity and adaptation as well as her ability to concentrate, and that there had been no deterioration in her school performance. She was in a normal and secure environment within her foster family, who met all her material and emotional needs.
48.  On 11 April 2011 the Granada child protection services submitted a proposal to the Granada first-instance judge no. 16 for G. to be adopted by her foster family.
49.  On 14 April 2011 the judge declared the adoption proceedings open.
50.  On 14 June 2011 the proceedings were stayed at the applicant's request. On 13 March 2012 the same judge set case no. 156/2010 down for hearing on 24 April 2012.
51.  In a report of 28 September 2012 addressed to the Government after they had been given notice of the present application, the Granada child protection services summed up the background to the separation and G.'s placement in the children's homes and subsequently in pre-adoption foster care, reiterating the arguments set forth in the original report of 4 October 2005 (see paragraph 16 above) and noting, among other things, “the defiant and provocative attitude of the applicant during her numerous visits to the child protection services, her persistent complaints against officials of the health services, the police, the social services and the protection centres ..., refusing to submit the documents requested by our departments and showing no interest in the child's well-being”. They also referred to the report of 25 March 2011, stating that “the emotional and family ties that have been created and continue to develop must be reflected in and consolidated by the legal situation, with the result that adoption would be the most appropriate means of ensuring the child's needs and interests”.
52.  The Court was not informed of the subsequent progress of the adoption proceedings. According to the information provided by the Government on 5 February 2013, the child had not yet been adopted.
...